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THE INTERNATIONAL COUET OF PRIZE 

On February 15, 1911, the Senate of the United States advised 
and consented to the ratification of the International Prize Court 
Convention 1 adopted by the Second Hague Peace Conference and 
signed by the American delegates October 18, 1907. Although 
transmitted to the Senate with the various Hague conventions on 
February 27, 1908, and favorably recommended by the President 
and Secretary of State, action upon the convention was deferred by 
the Committee on Foreign Relations because the convention in its 
original form involved an appeal from the Supreme Court of the 
United States to the international court at The Hague. This feature 
of the otherwise acceptable convention raised doubts as to its con- 
stitutionality, because Article 3, section 1, of the Constitution pro- 
vides that " the judicial power of the United States shall be vested 
in one Supreme Court." An appeal from the Supreme Court to 
the court at The Hague seemed to some inconsistent with this pro- 
vision, for a court can not be considered supreme if an appeal lies 
from its decisions. To this it may be answered that the court to be 
established at The Hague is not a court of the United States, and, 
therefore, is not contemplated by the Constitution; for the Hague 
court is a diplomatic tribunal for the settlement of questions which 
would otherwise be adjusted by diplomacy, or referred to a mixed 
commission specially constituted for their determination, or which 
if not determined by either of these methods, might result in war. 

To overcome this objection, Secretary Knox proposed, in a circular 
noted dated October 18, 1909, 2 a modification of the prize court con- 
vention, which, if accepted by the signatories of the original conven- 
tion, would modify it in such a way as to permit countries with 
constitutional difficulties of this nature to provide in the ratification 
of the convention that, instead of an appeal from their national courts 
and the possible reversal of their judgments, the original question 

i Printed in Supplement, 2:174. 
2 Printed in Supplement, 4:102. 



THE INTERNATIONAL COURT OF PRIZE 303 

involved in the controversy should be submitted to the prize court at 
The Hague, and that the tribunal should award damages if the 
action of the belligerent were considered illegal or unjustifiable. 
This proposal of the Secretary of State has been accepted by the 
signatories of the prize court convention and is embodied in an 
additional protocol, signed at The Hague on September 19, 1910, 3 
and subsequently adhered to by the parties to the original convention. 
The provisions of the protocol to which reference has been made 
are as follows : 

Article 1. The powers signatory or adhering to The Hague conven- 
tion of October 18, 1907, relative to the establishment of an international 
court of prize, which are prevented by difficulties of a constitutional 
nature from accepting the said convention in its present form, have the 
right to declare in the instrument of ratification or adherence that in 
prize cases, whereof their national courts have jurisdiction, recourse to 
the international court of prize can only be exercised against them in 
the form of an action in damages for the injury caused by the capture. 

Article 2. In the case of recourse to the international court of prize, 
in the form of an action for damages, Article 8 of the convention is not 
applicable ; it is not for the court to pass upon the validity or the nullity 
of the capture, nor to reverse or affirm the decision of the national tri- 
bunals. 

If the capture is considered illegal, the court determines the amount 
of damages to be allowed, if any, to the claimants. 

It will be noted that the first article quoted confers upon the 
Powers the right to declare in the instrument of ratification that 
recourse to the International Court of Prize can only be exercised 
against them in the form of an action in damages for the injury 
caused by the capture, and in advising and consenting to the original 
convention and the additional protocol the Senate provided that " in 
the instrument of ratification the United States of America shall 
declare that in prize cases recourse to the International Prize Court 
can only be exercised against it in the form of an action in damages 
for the injuries caused by the capture." 4 

Many and disinterested observers of the results actually achieved 
by the Second Hague Conference regard the establishment of an 

3 Printed in Supplement, p. 95. 

* See Senate Resolution, Supplement, p. 99. 



304 THE AMERICAN JOURNAL OF INTERNATIONAL LAW 

International Court of Prize as its greatest achievement, and there is 
much to be said for this point of view. 

For the past few centuries, earnest and progressive souls, intent 
upon drawing the world closer together, actually as well as figura- 
tively, into one great family, and establishing means for the peaceful 
settlement of any difficulties that arise among its members, have 
proposed that an international court be created with power to decide 
as a court of justice or arbitration, controversies presented, and, by 
the very force of its existence, to compel obedience to its decrees. 
The hope of the dreamer has been realized in large measure and the 
world is now possessed of its first international judiciary. 

Had there not, however, been other and material reasons for its 
establishment, an international court of prize would still be the 
favorite project of the enthusiast, for the Second Conference, as well 
as its illustrious predecessor, was not composed of idealists, but of 
trained diplomats, men of affairs, and experts in international law, 
whose duty was to the present and who were well content to leave to 
the future its own problems. The prize court appealed to them as a 
practical method of solving difficulties with which nations were con- 
fronted, for the outbreak of war lays a heavy hand upon neutrals 
as well as belligerents, closing to the neutral, markets which in peace 
were his, and subjecting, under certain conditions, his commerce 
upon the high seas to visit and search, capture and ultimate con- 
fiscation, if a belligerent is minded to stand upon his rights and 
strong enough to enforce them. 

The belligerent determines what is contraband, blockades the port 
of his enemy, and frames the rules for neutral observance. 5 Neutral 
property falling within the inhibited class is seized and the vessel 
and its cargo destined to a port of blockade is captured, according 
to the rules which the neutral did not frame, and adjudged lawful 
prize by a court in which he is not represented other than as a 
suitor who follows his property and requests its restoration from one 
who is alone entitled to pass upon the legality or illegality of his own 

s The effect of the Declaration of London ( printed in Supplement to this 
Journal, 3:179) is not considered in this connection as it has not been ratified 
as yet by Great Britain or the United States. 



THE INTERNATIONAL COUBT OF PRIZE 305 

acts. It is thus seen that the effects of war are not confined to the 
immediate belligerents, but that they extend to neutral commerce and 
neutral industry, that the remotest parts of the world are involved and 
its most innocent inhabitant may be affected in his purse and in his 
fortune by a war which he could not prevent and which he can 
neither control nor terminate. It is therefore clear that the neutral 
has an interest that war shall not take place, but if unfortunately 
it does exist, it is of the greatest moment to him that the legal- 
ity or illegality of his actions involving as they do title to his prop- 
erty and affecting his standing, both at home and abroad, be not 
adjudged by a tribunal of the captor, in which the neutral appears 
only as a suitor, and where the presumption is in favor of the captor 
and against the neutral ; but that an international court be created, 
in which the validity or invalidity of the acts of a belligerent, 
in so far as they affect neutral property, shall be decided by neu- 
trals, in which, however, the belligerent shall be represented, so 
that neither belligerent nor neutral be condemned without a hearing 
and without an opportunity in the court room by his advocate and 
in the council chamber by his judge, to explain his motives, defend 
his conduct, and insist that justice be administered in all cases. 

These statements are so self-evident as to amount to truisms, and 
therefore need neither argument nor illustration to enforce their 
acceptance. Nevertheless, an illustration taken from the history 
of our country when it was still an infant republic, unable to defend 
itself against aggression, except by the reason and the justice of its 
cause, may be pertinent. The unjustifiable interference with 
American commerce on the high seas by both Great Britain and 
France, in the wars of the French Eevolution, the impressment of 
American seamen taken by force from innocent merchantmen by the 
strong hand of Great Britain, led to the War of 1812, which settled 
nothing and unsettled much, and war would have been as improbable 
as it would have been needless, had there been an international court 
of prize in which the United States was represented and to which it 
could have presented its just claims before impartial, conscientious, 
well-trained and experienced judges. The creation of an institution 
which would thus preserve peace by averting future war was surely 



306 THE AMERICAN JOURNAL OF INTERNATIONAL LAW 

appropriate employment for a peace conference, even although the 
existence of the institution presupposes war. 

The prize court to be constituted at The Hague is intended to 
be and is, a court of appeal, for it presupposes a decision of a 
municipal prize court, from which an appeal may be taken. It 
might have been better, and it certainly would have avoided conflict 
with national courts of justice, if the contemplated institution had 
been a court of first instance, that is to say, if the belligerent had 
bound himself by the convention to resort in the first instance to 
the International Court of Prize for the condemnation of the prop- 
erty which he had seized and which, under existing international 
law, might properly be confiscated. But the desire of the framers 
of the convention was to correct the abuse of a system, not to abolish 
it, and permitting the court of the captor in the first instance to 
determine the validity or the invalidity of the capture, with the 
right of appeal to the international tribunal, had the great advantage 
of utilizing existing machinery before subjecting it to international 
supervision and control. 

The question may well arise, and did actually arise at the 
conference, whether an appeal should be taken directly from an 
unsatisfactory judgment of the municipal court of first instance, or 
whether an appeal should first lie to a superior or the ultimate 
national court, before calling into action the machinery at The 
Hague. There is much to be said for each question, for compelling 
a neutral who is ultimately forced to The Hague to exhaust his 
remedies in national courts, by appealing to the higher authority, is 
to saddle him with a heavy burden of expense and to cause him 
delay which may injuriously affect the property involved. On the 
other hand, it is not to be supposed that an error in the court of first 
instance will be uncorrected by the national court of appeal, espe- 
cially as a resort to the International Court of Prize at The Hague 
may well act as an incentive to the national judiciary to consider 
with the greatest of care the facts of the case and the principles of 
law applicable, lest the judgment be reversed by a foreign jurisdic- 
tion in which the national element, if present, is far from determina- 
tive. The German delegation was impressed by the loss of time 



THE INTERNATIONAL COUET OF PRIZE 307 

which the litigant would suffer by an appeal to a national court of 
the captor, whereas Great Britain and the United States preferred 
an appeal to their ultimate courts of appeal in prize cases for the 
twofold reason that national feeling might resent the interposition 
of an international court before an opportunity had been given to 
the national judiciary to revise or reverse its judgment; and that 
the judgment of their ultimate courts of appeal would be so care- 
fully argued, reasoned and acceptable that an appeal to The Hague 
would be unnecessary, or, if taken, that the judgment appealed from 
would be of great aid and assistance to the International Court of 
Prize in its consideration of the case. 

Mr. Choate proposed as a happy and acceptable compromise that 
the question of appeal should be left to each of the signatory Powers, 
to prescribe by local legislation whether one appeal should lie to its 
national courts or whether the appeal might be taken from the 
municipal court of first instance to The Hague. That the proceed- 
ings of the national courts should not be so long drawn out as to 
amount in themselves to a denial of justice, the period of two years 
was fixed within which they should pronounce final judgment. 

These provisions appear in the following articles from the con- 
vention, which are quoted in translated form: 

Jurisdiction in matters of prize is exercised in the first instance by 
the prize courts of the belligerent captor. (Art. 2.) 

The national courts can not deal with a case in more than two in- 
stances. The municipal law of the belligerent captor shall decide whether 
the case may be brought before the international court after judgment 
has been given in first instance or only after an appeal. 

If the national courts fail to give final judgment within two years from 
the date of capture, the case may be carried direct to the international 
court. (Art. 6.) 

Admitting that an appeal lies from the national to the international 
court, it is of fundamental importance to determine first, from what 
judgments the appeal may be taken; second, the party entitled to 
appeal; third, whether the appeal shall be taken upon a question of 
law or a statement of fact; and, fourth, the effect of the interna- 
tional judgment upon the judgment of the national court from 
which the appeal is taken. 



308 THE AMEKICAN JOUBNAL OF INTEBNATIONAL LAW 

The intention of the conference was not to provide a court for 
belligerents in relation to their subjects or citizens. It sought to 
provide, and actually did create, a court for neutrals in which the 
validity or invalidity of the capture or injury to neutral property 
might be impartially determined. Therefore, questions arising be- 
tween the belligerent and his subjects or citizens should be settled 
in the national court and not litigated in the international tribunal ; 
nor should questions between belligerents or their subjects or citizens 
be submitted to the international court unless neutral interest be 
involved or unless the injurious act is in violation of a treaty or 
convention between the belligerents, for the strict observance of 
international agreements is of interest to neutrals whether or not 
neutral property be involved. 

The question of appeal is briefly and admirably discussed in 
Article 3, the material portions of which are quoted : 

The judgments of national prize courts may be brought before the 
International Prize Court: 

1. When the judgment of the national prize courts affects the prop- 
erty of a neutral power or individual ; 

2. When the judgment affects enemy property and relates to: 

(a) Cargo on board a neutral ship; 

(b) An enemy ship captured in the territorial waters of a neutral 

Power, when that Power has not made the capture the sub- 
ject of a diplomatic claim; 

(c) A claim based upon the allegation that the seizure has been 

effected in violation, either of the provisions of a conven- 
tion in force between the belligerent Powers, or of an enact- 
ment issued by the belligerent captor. 

There can be little doubt that an appeal is justifiable where the 
judgment affects the property of a neutral Power or individual. A 
little reflection and analysis lead to the conclusion that the resort to 
the International Court of Prize is equally justifiable when the 
judgment, although primarily affecting enemy property, nevertheless 
involves a neutral interest. Therefore, a judgment of the belliger- 
ent, affecting enemy cargo on board a neutral ship should be subject 
to re-examination because of the interest which the neutral has in 
the determination of the question by reason of the neutral vessel 
involved. 



THE INTERNATIONAL COURT OF PRIZE 309 

In like manner, it is eminently proper that the court take juris- 
diction when an enemy ship is captured in the territorial waters of 
a neutral Power, because belligerents may prosecute hostilities within 
neutral jurisdiction. It may well be that the captured vessel has 
no reason for complaint because the declaration of war subjects it 
to capture, and the exact locality of seizure and capture is but an 
incident and detail so far as the belligerents are concerned. As, 
however, the action of the belligerent affects neutral rights and is 
an attack upon neutral sovereignty, it follows that, although the 
property involved belongs to the enemy, the neutral is entitled to 
the protection accorded by an international tribunal. 

In the same way a claim based upon the provisions of a conven- 
tion or of an enactment issued by the belligerent captor is within 
the scope and therefore properly within the jurisdiction of the Inter- 
national Court of Prize, because a convention between the belligerents 
is an international act, in which neutrals, as well as belligerents, are 
interested, and the effects of an enactment issued by the belligerent 
captor are not confined to the belligerent; for the enactment, how- 
ever legal it may be in the formal sense of the word, may either be 
a violation of international law or unduly burdensome to neutral 
interests. 

In the next place it was and is of great moment to determine 
whether the appeal may be taken solely by the nation on behalf of 
its subjects or citizens, or whether the injured individuals may 
themselves institute proceedings. States are said to be subjects of 
international law, and the individual as such has no standing in 
the law of nations. There are, however, two sides to the question, 
for it is common knowledge that the foreign office moves slowly and 
much time is consumed before the claim of the individual is pre- 
sented to the foreign government, even if approved. The depriva- 
tion of his property is a hardship to the individual and the direct 
and indirect losses are very great. The municipal courts are open 
to the individual for the redress of a real or fancied wrong, and it 
would seem by analogy that the individual should be permitted to 
test his right and secure the redress of a wrong, without the ex- 
pressed consent or permission of the government. Yet, on the other 



310 THE AMERICAN JOURNAL OF INTERNATIONAL, LAW 

hand, the case may involve international interests and its adjudica- 
tion will therefore be of great moment to the state; or, again, the 
government may so far wish to espouse the cause as to appear as 
litigant in place of its subject or citizen and thus secure to the indi- 
vidual a more careful and more adequate presentation of his claim. 
The conference, therefore, while recognizing the right of the indi- 
vidual, subjected its exercise to national control. 

In like manner, it would seem that a subject or citizen of the 
belligerent government should be allowed to appeal to the Interna- 
tional Court of Prize in the cases specified in Article 3 previously 
quoted. As, however, the capture of his property in neutral juris- 
diction concerns primarily the neutral, and is often a matter of great 
delicacy, it is not to be supposed that the neutral nation would 
allow the question to arise upon private initiative, as the result of 
the litigation might embarrass the neutral country and even involve 
it in the controversy. Such are the provisions of the convention 
as appears from the following article : 

An appeal may be brought : 

1. By a neutral Power, if the judgment of the national tribunals 
injuriously affects its property or the property of its nationals (Article 
3, 1), or if the capture of any enemy vessel is alleged to have taken place 
in the territorial waters of that Power (Article 3, 2, b) ; 

2. By a neutral individual, if the judgment of the national court 
injuriously affects his property (Article 3, 1), subject, however, to the 
reservation that the Power to which he belongs may forbid him to bring 
the case before the court, or may itself undertake the proceedings in his 
place ; 

3. By an individual subject or citizen of an enemy Power, if the 
judgment of the national court injuriously affects his property in the 
cases referred to in Article 3, 2, except that mentioned in paragraph b. 
(Article 4.) 

The intention of the framers of the convention was to establish a 
court of appeal and invest it with the power and authority necessary 
to decide the controversy. Therefore, it may decide on appeal that 
the judgment appealed from was wrong, either in fact or in law, 
and, having reached that conclusion, itself ascertain and determine 
the rights of the parties. (Article 3.) 

In considering the effect of the international judgment upon the 



THE INTERNATIONAL COURT OF PRIZE 311 

judgment of the national court from which the appeal is taken, it 
is necessary to hear in mind the fact that the court at The Hague 
was intended to be, and is, a court of appeal, and as such court of 
appeal, passes directly upon the judgments submitted to it for its 
consideration. If the judgment of the lower court be affirmed there 
is no difficulty; if, however, the judgment be reversed, the question 
arises as to the exact relation between the international and national 
judgment, a question which may involve constitutional difficulties 
and give rise to no little trouble. An international court of appeal 
is a novelty, and is, in reality, a supreme court of appeal for prize 
cases, binding the world because the world, so to speak, is a party to 
its creation and is represented in it. Its decision as a court of 
appeal is final, and if the judgment of the national court is irrecon- 
cilable with it, the judgment of the national court is reversed, and 
by acceding to the convention the country from whose court the 
appeal is taken pledges its good faith to give full force and effect 
to the judgment on appeal. If the two judgments are inconsistent 
in part, the decision of the international court is, in simple terms, 
a reversal in part. It would have been possible, however, to accom- 
plish the same purpose without creating a court of appeal, thus 
avoiding a possible conflict between the national and international 
court, and questions of constitutional law which may arise in some 
countries, or without endangering the amour propre of a country, 
which might suffer where the national judgment is reversed by an 
international court. For example, it would have been possible and 
feasible to have provided that, whenever a nation or litigant was dis- 
satisfied with the decision of the municipal court in a prize case, 
the question involved, rather than the judgment of the national court, 
be submitted to the international court for a new trial of the case 
upon its merits. It is true that the national judgment could not 
escape examination and criticism because it is by virtue of the 
alleged denial or miscarriage of justice that the question is litigated 
anew. At the same time, the judgment would not be before the 
court for reversal, and the judgment of the court would simply be a 
judgment upon the case as actually presented upon the retrial, with- 
out affirming or reversing the national judgment. 



312 THE AMERICAN JOURNAL OF INTERNATIONAL LAW 

Impressed by the importance of these considerations, Secretary 
Root instructed the American delegates to the recent Naval Con- 
ference at London to propose 

An additional article or protocol for the consideration of and eventual 
acceptance by the conference, by which each signatory of the convention 
of October 18, 1907, shall possess the option, in accordance with local 
legislation, either to submit the general question of the rightfulness of 
any capture to the determination of the International Prize Court, or to 
permit an appeal from the judgment of a national court in a specific 
case direct to the International Prize Court as contemplated by the 
convention of October 18, 1907. 

In the view of the Department the following draft would be not merely 
satisfactory, but calculated to remove the objections made to the estab- 
lishment of the International Court of Prize: 

Any signatory to the convention for the establishment of an Inter- 
national Court of Prize, signed at The Hague on October 18, 1907, may 
provide in the act of ratification thereof, that, in lieu of subjecting the 
judgments of the courts of such signatory Powers to review upon appeal 
by the International Court of Prize, any prize case to which such sig- 
natory is a party shall be subject to examination de novo upon the ques- 
tion of the captor's liability for an alleged illegal capture, and, in the 
event that the International Court of Prize finds liability upon such 
examination de novo, it shall determine and assess the damages to be 
paid by the country of the captor to the injured party by reason of the 
illegal capture. 

Acting upon these instructions, the American delegation was able 
to secure the adoption of the following recommendation, which, if 
universally or generally accepted, would obviate any constitutional 
objection to the establishment of the court: 

The delegates of the Powers represented at the Naval Conference 
which have signed or expressed the intention of signing the convention 
of The Hague of the 18th October, 1907, for the establishment of an 
International Prize Court, having regard to the difficulties of a constitu- 
tional nature which, in some states, stand in the way of the ratification 
of that convention in its present form, agree to call the attention of their 
respective governments to the advantage of concluding an arrangement 
under which such states would have the power, at the time of depositing 
their ratifications, to add thereto a reservation to the effect that resort 
to the International Prize Court in respect of decisions of their national 
tribunals shall take the form of a direct claim for compensation, provided 
always that the effect of this reservation shall not be such as to impair 
the rights secured under the said convention, either to individuals or to 
their governments, and that the terms of the reservation shall form the 



THE INTERNATIONAL, COUET OP PEIZE 313 

subject of a subsequent understanding between the Powers signatory of 
that convention. 

As the result of diplomatic negotiations, the signatories of the 
original convention have agreed to modify it by an additional pro- 
tocol in the sense of the above instructions as set forth by Secretary 
Knox in his circular note of October 18, 1909, and the obstacle to 
the acceptance of the original convention by the United States was 
fortunately removed. 

The question, however, would still arise as to the relation between 
the national and international judgment. From one standpoint there 
is no relation between them, for one is the decision of a municipal, 
the other, of an international court. But we can not stop here, for, 
by submitting the case in question to a retrial at The Hague, the 
good faith of the litigating nations is pledged to accept and comply 
with its decision. If the award sounds in damages it is necessary 
that the damages be paid, which may involve action by the Parlia- 
ment, the Congress, or Chamber of Deputies. For all practical 
purposes the national judgment has been reversed if the judgment 
of the international court is opposed to and inconsistent with it ; but 
in a technical sense, the national judgment would still stand because 
it was not submitted to the international court for revision and be- 
cause the international court would only pass upon the question as 
if it were a court of first instance. The national judgment is thus 
technically unaffected and may serve as a precedent in a similar sub- 
sequent case. For example, in The Circassian, 2 Wallace, 135, de- 
cided by the Supreme Court in 1864, it was held that a blockade of 
New Orleans was not raised by land occupation of the port, and 
such decision was followed in the like case of The Adula, 176 U. S. 
361, arising out of the recent Spanish-American war, even although 
the question involved in The Circassian had been submitted to the 
Mixed Commission of 1872 and decided adversely to the judgment 
of the Supreme Court. It is impossible, therefore, to consider 
The Circassian as an international authority, even although it was 
followed by our Supreme Court on a recent occasion, for a de- 
cision of the Mixed Commission of 1872 has shorn it of inter- 
national respect. From this simple statement, therefore, it appears 



314 THE AMERICAN JOURNAL OF INTERNATIONAL LAW 

evident that a permanent international court to which international 
controversies are submitted, is bound by the very nature of things 
to be a court of appeal, even although it be not so constituted and 
bears a more modest or less alarming name. It matters little from 
an international standpoint whether or not it is a court of appeal. 
From the constitutional standpoint, however, its appellate character 
delayed its ratification by the United States, because of the constitu- 
tional provision heretofore mentioned that " The judicial power of 
the United States shall be vested in one Supreme Court," which, 
by a strict construction, may seem to negative an appeal from that 
august tribunal to the still more august court at The Hague. 

It is now necessary to consider the law to be administered in the 
court of prize. If the law of prize were codified and accepted by 
the nations parties to the prize convention, it would necessarily 
follow that the code should be administered, interpreted, and applied 
in the decision of prizes eases. But international law is not as yet 
codified, and although international in origin, character, and au- 
thority, it has suffered from national prejudice and bias in its 
interpretation. If there be a treaty or convention between the 
litigating parties, it is self-evident that their rights and duties 
would be measured by the terms of the obligation assumed. If 
there be no treaty or convention between them, yet, if the principle 
of international law involved is universally recognized, it would be 
the law of the parties, even although they may not have expressly 
consented to it, and would be properly administered by the court. 
If, however, it can not be said that the principle involved has been 
so generally recognized as to form a part of positive international 
law, and the interpretation and practice of the litigants differ, it is 
a nice question for the court to decide which practice to follow. For 
example, at the meeting of the Second Hague Conference there 
could not be said to be an international law of contraband and 
blockade, for there was an Anglo-American practice in each of these 
subjects as distinguished from Continental theory and practice. In 
the same way the doctrine of continuous voyage played a very con- 
spicuous part in American jurisprudence, and was applied indis- 
criminately to contraband and blockade. In England, continuous 



THE INTERNATIONAL COURT OF PRIZE 315 

voyage was accepted as to contraband, although questioned as to 
blockade; whereas, the Continent with few exceptions, wholly re- 
jected the doctrine. In a question between the United States and 
Germany, submitted to the International Court of Prize for de- 
cision, which view would prevail? The American contention is 
recognized by repeated decisions of our Supreme Court. The Ger- 
man contention has the authority of Continental jurisprudence and 
is deeply rooted in Continental practice. 

To allow the court to determine the question is to invest it with 
the character of a legislature and to permit it slowly, but surely, to 
develop and codify the law of nations, just as English and American 
courts have codified the principles of the common law. It is diffi- 
cult, perhaps impossible, to prevent a court from developing and 
codifying the principles of law, but it may well be that nations 
regard some principles as of such fundamental importance as to be 
unwilling to intrust their codification to a body of jurists over which 
they have no control. Great Britain especially, which has made so 
large a part of prize law, was unwilling to intrust this function to 
the International Court of Prize, although it is a fact that its delega- 
tion forced the acceptance of this provision upon the Second Hague 
Conference. Subsequent reflection and the opposition of British 
publicists and naval experts caused Great Britain to call a confer- 
ence to consider the law to be administered by the court in certain 
specified cases of peculiar significance, and this conference, which 
met on December 4, 1908 and adjourned on February 26, 1909, 
succeeded in codifying various important principles of international 
law in such a satisfactory manner that it is reasonable to assume that 
it will be generally accepted. The community of nations, therefore, 
has an International Court of Prize and a substantial body of law 
for the guidance of the court charged with its administration and 
interpretation. Articles 7, 8, and 9 of the prize convention are 
henceforth unobjectionable. 

Article 7. If a question of law to be decided is covered by a treaty 
in force between the belligerent captor and a Power which is itself or 
whose subject or citizen is a party to the proceedings, the court is 
governed by the provisions of the said treaty. 

In the absence of such provisions, the court shall apply the rules of 



316 THE AMEEICAN JOURNAL OF INTERNATIONAL LAW 

international law. If no generally recognized rule exists, the court shall 
give judgment in accordance with the general principles of justice and 
equity. 

The above provisions apply equally to questions relating to the order 
and mode of proof. 

If, in accordance with Article 3, 2, c, the ground of appeal is the 
violation of an enactment issued by the belligerent captor, the court will 
enforce the enactment. 

The court may disregard failure to comply with the procedure laid 
down in the enactments of the belligerent captor, when it is of opinion 
that the consequences of complying therewith are unjust and inequitable. 

Article 8. If the court pronounces the capture of the vessel or 
cargo to be valid, they shall be disposed of in accordance with the laws 
of the belligerent captor. 

If it pronounces the capture to be null, the court shall order restitu- 
tion of the vessel or cargo, and shall fix, if there is occasion, the amount 
of the damages. If the vessel or cargo has been destroyed, the court 
shall determine the compensation to be given to the owner on this account. 

If the national court pronounced the capture to be null, the court 
can only be asked to decide as to the damages. 6 

Article 9. The contracting Powers undertake to submit in good 
faith to the decisions of the International Prize Court and to carry them 
out with the least possible delay. 

So far the nature and jurisdiction of the court of prize, the rela- 
tion of its judgments to decisions of national courts and the law to be 
administered by it have been discussed. These subjects presuppose 
the existence of judges, for without judges, while we may have a 
project, we can not have a court. Now judges may be of two kinds 
as regards permanency. They may be chosen for a particular con- 
troversy as is the case with the so-called Permanent Court of Arbi- 
tration, or they may be selected at least for a period of years as is, 
and always must be, the case in a veritable court of justice; other- 
wise there is no continuity between its decisions, there is no neces- 
sary or natural connection between their judgments, and there is 

• Article 8 is thus modified by the Additional Protocol for such nations as care 
to avail themselves of it: 

Art. 2. In the case of recourse to the international court of prize, in the form 
of an action for damages, Article 8 of the convention is not applicable; it is not 
for the court to pass upon the validity or the nullity of the capture, nor to 
reverse or affirm the decision of the national tribunals. 

If the capture is considered illegal, the court determines the amount of dam- 
ages to be allowed, if any, to the claimants. 



THE INTERNATIONAL COURT OF PRIZE 317 

lacking the esprit de corps as essential in a court as in any other 
organization. 

The German project proposed a court of five judges, three of whom 
were to be drawn from the panel of the so-called Permanent Court of 
Arbitration, and to those selected by the belligerents were to be added 
two naval officers, likewise selected by the belligerents. According to 
the German conception there would be no actual prize court There 
would, however, exist machinery for its creation. Great Britain, on 
the other hand, proposed a court to be created by the signatories, and 
to be either in session or ready for session at any given moment, 
because the judges to be chosen from the eight states possessing 
mercantile tonnage of eight hundred thousand tons would be pledged 
by the oath of their office to assemble upon notice. As the result 
of much discussion, concession and compromise, it was eventually 
decided that the court should consist of fifteen judges, jurists of 
known proficiency in questions of international maritime law, and 
of the highest moral reputation; that these judges should be ap- 
pointed within six months after the ratification of the prize conven- 
tion (Article 10) ; and that they should hold office for a period of 
six years, subject, however, to reappointment. (Article 11.) The 
judges thus chosen and appointed are to enjoy outside of their 
country diplomatic privileges and immunities in the performance 
of their duties, and before assuming their duties must swear or make 
a solemn promise before the Administrative Council to discharge 
their duties impartially and conscientiously. (Article 13.) Of the 
fifteen judges composing the court, nine constitute a quorum, and 
an absent judge is replaced by a deputy, so that the panel may be 
full. Of the fifteen judges, one is to be appointed by each of the 
following countries: Germany, the United States of America, 
Austria-Hungary, France, Great Britain, Italy, Japan, and Bussia, 
and the judges thus selected are always summoned to sit. While 
the larger maritime countries are thus allowed permanent representa- 
tion, it would be manifestly unfair to exclude from the court smaller 
nations whose interest is as keen though not materially so great. 
The smaller states are, therefore, authorized to appoint judges for 
the full period of six years, but they are only called upon to serve 



318 THE AMEEICAN JOUBNAL OF INTEBNATIONAL LAW 

for a portion of the period for whieh they are appointed, in accord- 
ance with the table of rotation annexed to and forming part of Article 
15. But it may well happen that one of the smaller states at war 
is not represented upon the court. In such a ease provision is made 
by Article 16 of the convention to admit its judge during the trial 
of a case in which it is interested, and to exclude by lot a judge who 
would otherwise be qualified to sit. 

It will be recalled that the German project provided that a naval 
officer should be a member of the court and take part in the decision 
of the cases. However acceptable this idea may have been to the 
war lords of the Continent, it found no favor with Great Britain 
and the United States, which countries desired a court composed of 
judges acting under a sense of judicial responsibility, from which 
naval officers would necessarily be excluded. As was wittily said 
by Mr. Choate, " the duty of the admiral is to provide cases for the 
court, not to decide them." Although the presence of a naval expert 
might be of no little service in explaining the technicalities of the 
ease, it appeared to some delegates to be a derogation from his high 
station to summon him as a witness. It was, therefore, eventu- 
ally decided in the broad spirit of compromise, largely upon the 
initiative of Mr. Choate, that 

The belligerent captor is entitled to appoint a naval officer of high 
rank to sit as assessor, but with no voice in the decision. A neutral 
Power, which is a party to the proceedings or whose subject or citizen 
is a party, has the same right of appointment; if as the result of this 
last provision more than one Power is concerned, they must agree among 
themselves, if necessary by lot, on the officer to be appointed. (Article 
18.) 

It is evident, therefore, that the court of prize is, in the strict 
technical sense of the word, a court of justice. And in further 
evidence of this fact, if indeed additional testimony be necessary, 
Article 17 provides that 

No judge can sit who has been a party, in any way whatever, to the 
sentence pronounced by the national courts, or has taken part in the case 
as counsel or advocate for one of the parties. 

No judge or deputy judge can, during his tenure of office, appear as 
agent or advocate before the International Prize Court, nor act for one 
of the parties in any capacity whatever. 



THE INTEBNATIONAL COUET OF PEIZE 319 

Not only are the judges to be judges by profession and jurists of 
repute, but they are thus forbidden to have taken part in the decision 
of the case in the national court, and they may not appear as agents 
or advocates before the court, nor act for one of the parties in any 
capacity other than a judicial capacity, during the tenure of their 
office. The court is an actual, existing court, because within six 
months after the ratification of the prize convention the judges are 
to be appointed and ready to proceed to the work when summoned. 
The court is thus permanent, although in recess. It is noted that 
the convention considers the possibility that the judges may be called 
at any time to The Hague for the performance of their judicial 
duties, and Article 20 of the convention provides traveling allow- 
ances for the judges in accordance with the regulations in force in 
their own countries. In addition, the judges receive the sum of one 
hundred florins per diem (a sum amounting to about forty dollars in 
American currency), when actually engaged in judicial duties. It 
can not be said that the fees and appurtenances belonging to the office 
are princely, but the honor is. If it be borne in mind that the judges 
of the court do not devote their exclusive time to it, that they no 
doubt will be in many cases, high salaried officials or professors in 
law schools of repute, from which a leave of absence can readily be 
obtained, the compensation is not so insignificant as it might other- 
wise seem. However this may be, the framers of the convention 
were determined to exclude from the panel of prospective judges, 
politicians and worldlings, to whom the salary could be the slightest 
inducement, and in order to cut off the hope of reward for sub- 
serviency to national interests, and to free the judges from the 
slightest suspicion of currying favor, they are forbidden by Article 
20 to " receive from their own government or from that of any other 
Power any remuneration in their capacity of members of the court." 

It should be stated that the court is to sit at The Hague and may 
not be transferred elsewhere, except in the case of force majeure, 
without the consent of the belligerents. (Article 21.) It should 
also be noted that it determines its language and the languages to 
be used before it, with the proviso, however, that the official lan- 
guage of the national court from which the appeal is lodged, may 



320 THE AMERICAN JOURNAL OF INTERNATIONAL LAW 

be used. (Article 24.) It is hardly necessary to add that the liti- 
gating nations may appoint special agents, counsel, or advocates to 
serve as intermediaries between the court and to defend national 
rights and interests (Article 25), and that a private litigant has 
the right to be represented by a lawyer of standing. (Article 26.) 
It is also provided that the court possesses the power to summon 
witnesses or experts to appear before it, even although the requests 
are to be addressed to the foreign government. (Article 27). 

It is necessary to consider very briefly the procedure before the 
court of prize, whose nature, jurisdiction, and composition has been 
determined. As has been frequently stated, the court of prize is a 
court of appeal and an appeal to it is taken " by means of a written 
declaration made in the national court which has already dealt with 
the case, or addressed to the International Bureau ; in the latter case 
the appeal can be entered by telegram." (Article 28.) In other 
words, the litigating nation or party may make formal statement in 
the national court of the intention to appeal the case, or, if preferable, 
may notify the International Bureau at The Hague of the intention to 
appeal, even by means of a telegram. 7 But the right of appeal must 
be exercised within limits, for the question at issue must be decided 
within a certain period of time. Article 28 of the convention fixes 
this period at one hundred and twenty days counted from the date 
of the delivery of the decision or its notification. "Upon notice of 
appeal made in a national court it becomes its duty to transmit to 
the International Bureau the record of the case within seven days. 
If, however, the notice is sent directly to the International Bureau, 
the Bureau immediately informs the national court, preferably by 
telegraph, whereupon the docket of the case is to be transferred to 
the International Bureau within the specified period of seven days- 
If the appeal is by an individual, the International Bureau informs 

7 In the alternative procedure provided by the Additional Protocol Article 28 
is thus modified: 

Aet. 5. In derogation of Article 28, paragraph 1, of the convention, the suit 
for damages can only be brought before the international court of prize by 
means of a written declaration addressed to the International Bureau of the 
Permanent Court of Arbitration; the case may even be brought before the bureau 
by telegram. 



THE INTERNATIONAL COURT OF PRIZE 321 

his government by telegraph so as to enable it to decide whether or not 
it will intervene on behalf of its citizen or subject, or forbid him to 
bring the case before the court as provided in Article 4, paragraph 2, 
of the convention. (Article 29. ) 8 If the two years expire within 
which an appeal may be prosecuted in the national court, or if the 
national court has failed within two years to pronounce its judgment, 
the notice of the appeal is to be addressed only to the International 
Bureau and must be entered within thirty days after the expiration 
of the period of two years (Article 30), unless the appellant can 
show that he was prevented from perfecting his appeal within the 
period of thirty days by force majeure, and that the appeal was 
entered within sixty days after the circumstances which prevented 
him entering it before had ceased to operate. (Article 31.) 

The appeal is then before the International Court of Prize, and 
the proceedings then to be taken are first, the written pleadings and 
second the oral discussions. 

The written pleadings consist of the deposit and exchange of cases, 
counter-eases, and, if necessary, of replies, of which the order is fixed by 
the court, as also the periods within which they must be delivered. The 
parties annex thereto all papers and documents of which they intend to 
make use. 

A certified copy of every document produced by one party must be 
communicated to the other party through the medium of the court. 
(Article 34.) 

After the close of the pleadings, a public sitting is held on a day fixed 
by the court. 

At this sitting the parties state their view of the case both as to the 
law and as to the facts. 

The court may, at any stage of the proceedings, suspend speeches of 
counsel, either at the request of one of the parties, or on their own 
initiative, in order that supplementary evidence may be obtained. 
(Article 35.) 

s Article 29 is thus modified by the Additional Protocol: 

Art. 6. In derogation of Article 29 of the convention the international bureau 
shall notify directly, and if possible by telegram, the Government of the belli- 
gerent captor of the declaration of action brought before it. 

The Government of the belligerent captor, without considering whether the 
prescribed periods of time have been observed, shall, within seven days of the 
receipt of the notification, transmit to the international bureau the case, append- 
ing thereto a certified copy of the decision, if any, rendered by the national 
tribunal. 



322 THE AMERICAN JOURNAL OF INTERNATIONAL LAW 

As the purpose of the court is to ascertain the facts which produce 
the controversy, before applying the law, it follows that supple- 
mentary evidence may be taken, either before the court, or by one or 
more of its members. (Article 36.) It likewise follows that if a 
party to the controversy duly summoned does not appear, the court 
shall proceed and deliver a judgment in the case as submitted. The 
importance of this provision justifies the quotation of the exact text 
of the convention: 

If a party does not appear, despite the fact that he has been duly 
cited, or if a party fails to comply with some step within the period 
fixed by the court, the case proceeds without that party, and the court 
gives judgment in accordance with the material at its disposal. (Article 
40.) 

In order to decide the case properly it is necessary that all the 
facts, evidence and oral statements be considered, and Article 42 
imposes this as a duty upon the court. In reaching its conclusion 
the court meets in private and the proceedings are secret, and all 
questions are decided by a majority of the judges present. In case 
of a tie, the vote of the junior judge is not counted. (Article 43.) 

It is of the highest importance for the development of international 
law not merely that the case presented be definitely decided, but 
that it be correctly decided by the application of correct principles of 
law to the facts as found; therefore, both for the protection of the 
court and for the development of international law, it is essential 
that the judgment give the reasons on which it is based. It is like- 
wise advisable that the judgment contain the names of the judges 
taking part in it, as well as of the assessors, if any, and that the 
judgment for purposes of authenticity be signed by the president and 
registrar. Such are the requirements of Article 44. 

Publicity of proceedings, as far as consistent with the order and 
despatch of business, is expedient. Article 45 provides that the 
sentence be pronounced in public sitting, that the parties concerned 
are present, or summoned to attend, and that the sentence is com- 
municated officially to the parties. As, however, the prize court is 
a court of appeal, it is essential that the record of the case, including 
copies of the decisions and minutes of the proceedings, be communi- 



THE INTERNATIONAL COTJKT OF PRIZE 323 

cated officially by the court to the municipal court from which the 
appeal was taken, and such is the requirement of Article 45. 9 

It is to be hoped that the court will draw to it cases of importance ; 
at the same time, frivolous appeals should be discouraged. (Article 
46. ) It would be improper, however, that the individual litigants be 
taxed for the general expenses of the court, for just as a national 
court is supported at the expense of the nation, the general expenses 
of the court of appeal should be borne by the signatory Powers, re- 
quiring, however, each party to pay its own individual costs in 
actual litigation, as is the practice of national courts. (Article 47.) 

A careful examination of the convention as a whole shows that 
many of the functions of the court may properly be exercised by a 
judicial committee. Therefore Article 48 provides that certain of its 
duties may be performed by a delegation of three members appointed 
by the court. It is of the essence of a court that it draw up its rules of 
procedure, and it is of fundamental importance to prospective liti- 
gants and counsel that the procedure be known in advance. There- 
fore, Article 49 specifically invests the court with this power and 
duty, and provides that the court shall meet within a year of the rati- 
fication of the present convention to formulate its rules of procedure. 
However carefully a code is drawn, experience suggests modification 
and improvements ; therefore, Article 50 provides that " The court 
may propose modifications in the provisions of the present convention 
concerning procedure." But as a court is the creature of the con- 
tracting Powers, it is wisely determined that the proposal shall be 
communicated by the Netherland Government to the contracting 
parties, which will, perhaps, adopt the proposed changes and take 
concerted action upon them. (Article 50.) 

From this rapid survey, it is evident that the Second Hague Con- 
ference was able to, and did actually create a court for the trial and 
decision of international controversies arising out of maritime war- 

» Article 45 is thus modified by the Additional Protocol : 

Art. 7. In derogation of Article 45, paragraph 2, of the convention the court 
rendering its decision and notifying it to the parties to the suit shall send 
directly to the Government of the belligerent captor the record of the case sub- 
mitted to it, appending thereto a copy of the various intervening decisions as 
well as a copy of the minutes of the preliminary proceedings. 



324 THE AMERICAN JOURNAL OF INTERNATIONAL LAW 

fare, and furnished at one and the same time a precedent for the 
establishment of an international tribunal for the trial and judicial 
settlement of the international controversies arising in time of peace. 
If by special agreement the contracting Powers should invest the In- 
ternational Court of Prize with the jurisdiction of the proposed Court 
of Arbitral Justice, the world would possess a truly permanent and 
adequate international judiciary and realize the hopes and aspira- 
tions of those who believe that force itself is not above the rules of 
law. 

In concluding, an apt passage is quoted from President Roose- 
velt's message to Congress in 1907 : 

Any one who recalls the injustices under which this country suffered 
as a neutral Power during the early part of the last century can not fail 
to see in this provision for an international prize court the great advance 
which the world is making towards the substitution of the rule of reason 
and justice in place of simple force. Not only will the international 
prize court be the means of protecting the interests of neutrals, but it is 
in itself a step towards the creation of the more general court for the 
hearing of international controversies to which reference has just been 
made. The organization and action of such a prize court can not fail to 
accustom the different countries to the submission of international ques- 
tions to the decision of an international tribunal, and we may confidently 
expect the results of such submission to bring about a general agreement 
upon the enlargement of the practice. 

James Brown Scott.